By Ahmednasir Abdullahi
First, to appreciate the tenor and meaning of the 10 pages advice by CJ Maraga to H.E President UHURU, we have to decipher into Maraga’s judicial philosophy or lack of it as a judge since he joined the judiciary in 2003. We have to appreciate that CJ Maraga has no KNOWN judicial philosophy in the traditional sense of the word. In 17 years on the Bench Maraga hasn’t espoused a theory of law that can help us pigeon hole him in any known legal school of thought.
He camouflages the lack of legal philosophy with drama. He is a drama queen in the classical sense. As in 2017 when he nullified the Presidential election, Maraga compensates his lack of sound grounding on the law by making controversial decisions that resonate with WANJIKU. He thus build his reputation not with the students of law, legal scholars or practitioners but with the man/woman on the street. Today’s advisory note to the President should be appreciated in that context.
Before I go to the merits and demerits, let explain the STATUS the CJ held in delivering the advice. First, the CJ sits only in one court, as the President of the Supreme Court. This wasn’t a judicial decision of a court of law. The CJ was not even performing an administrative function that required him to interrogate dialectical or competing claims and then render a decision. The CJ under Article 261(7) performs a “Courier service”. He relays message from the High Court to the President. He advises the president as a “messenger”, a courier of the High Court decision and not by writing an opinion.
The advice is not “substantive”, the advice is “procedural” as to what the High Court ruled under Article 261(6)(b). The advice is “FORM” not “CONTENT”. Maraga has committed a constitutional error when he analysed and rendered a legal opinion on the matter instead of transmitting the message from the High Court to the President. Then we have use of the modal verb “shall” in Article 261(7). Does the verb “shall” mean the President “Must”. Only a first-year law student or my friend Lawyer Donald Kipkorir will make that elementary mistake. In this CONSTITUTIONAL context the verb “Shall” means “May”. So the President has absolute discretion to ignore, shelf or take some time before he decides what to do.
An ADVICE by its very nature cannot compel one to take a given route. He can decide on a number of actions or options which brings to an important legal issue. Since the CJ was a messenger of the High Court can his conduct in the manner he handled the message be subjected to constitutional judicial review? Absolutely. The CJ’s actions fall under the supervisory jurisdiction of the High Court.
Article 10 is also very important in this regard. A number of options are to open to aggrieved parties. The CJ is guilty of “jurisprudential naiveté”. God forbid but if Uhuru disbands parliament and we go for parliamentary elections, a vicious circle and endless circus kicks in under Article 261(8). A parliament of the same male: female ratio will go through the same process.
So what are the options? One, the President has no obligation to dissolve parliament. A transmitory advice from one body to the other can never trigger mandatory consequences. Second, the President taking into the account Maraga’s past must see him as a “JUDICIAL ANARCHIST”. Maraga takes the law too literal not as a result of philosophical disposition but because a deeper and sound reflection is beyond him. Just like in 2017 Maraga plants chaos and mayhem. Third, parliament must seek a constitutional judicial review both against the CJ and Uhuru.
Uhuru can be stopped by the High Court. Four, Parliament must make an election and sue the President alone, stopping him from acting on the contaminated advice by the CJ. Lastly, Uhuru in line with my legal opinion must tell Kenyans that he has taken note of Maraga’s advice but elects to shelf it because he takes the view that the more considered views of the GRAND MULLA are much superior to that of MARAGA’S.
EPILOGUE. Where does Maraga’s advice leave BBI and can parliament take any step in light of today’s events? Of course if Uhuru wrongly and regrettably goes against my legal opinion, the BBI story is over as we will go to elections. But if he goes with my opinion does it mean that parliament can play any role in the BBI process? I’m of the view that considering the cloud of constitutional uncertainty and doubts created by Maraga’s advice, Parliament will be a LIMPING institution that will lack the POPULAR LEGITIMACY to participate In constitutional re-engineering of Kenya. It must avoid the weighty process of constitutional making during the coming years and limit itself to statute legislation as of necessity. BBI with all maneno facing it can’t be sanitised by a LIMPING parliament.
Ahmednasir Abdullahi is Constitutional Lawyer, Senior Counsel, Chairman of the Senior Counsel Committee, Law Society of Kenya. Publisher of the Nairobi Law Monthly.